With guns drawn and flashlights cutting through darkened rooms, Polk County undercover drug investigators stormed the home of convicted drug dealer Michael Difalco near Lakeland in March. As investigators searched the home for drugs, some drug task force members found other ways to occupy their time. Within 20 minutes of entering Difalco's house, some of the investigators found a Wii video bowling game and began bowling frame after frame. While some detectives hauled out evidence such as flat screen televisions and shotguns, others threw strikes, gutter balls and worked on picking up spares. A Polk County sheriff's detective cataloging evidence repeatedly put down her work and picked up a Wii remote to bowl. When she hit two strikes in a row, she raised her arms above her head, jumping and kicking. While a female detective lifted a nearby couch looking for evidence, another sheriff's detective focused on pin action. But detectives with the Polk County Sheriff's Office, the Auburndale, Lakeland and Winter Haven police departments did not know that a wireless security camera connected to a computer inside Difalco's home was recording their activity.

Here's a photo of the action:

Assuming playing Wii didn't lead the police to discover any evidence, I don't think the defendant can get any of the evidence suppressed. And it's hard to know what the damages are in a civil suit, even assuming that there was in fact an unauthorized Wii seizure (a wee seizure, I suppose!). But c'mon, folks: Wii is for home, not work, especially when you are conducting a police raid.

I have been here two years and am resigned to seeing the most bizarre headlines, scrolling down, and finding that I am reading about my new home. It's gotten to the point that I am surprised when something stupid happens anywhere else.

Actually though, I think this is an example of pretty good police work. Read the whole article, and you'll see they surveilled the guy for some time and took him into custody away from his home and weapons. So, when they raided the house, there was nobody there to kill cops, and much less chance of the cops killing innocent people inside. Again at least they didn't blow away some poor grandma.

What about the unauthorized (and unnecessary) use of electricity? Also, although damages would be nominal, isn't it technically a seizure (that violates the constitution) if they they continue to play the game after they know that it's not related to the warrant?

Blargh, I think you're right, but it's a sad day when we say "hey, the cops didn't intentionally endanger themselves, the suspects, and innocent citizens nearby" and consider that an achievement, rather than the minimum we should expect.

They played with something that didn't belong to them. They don't get to joy ride in the Ferrari, they don't get to snort the coke, they don't get to borrow the porn, no matter how much of a scum bag the suspect may be. It's not their stuff, and that's not why the citizens are paying their salary.

Ten or 15 years ago, officers executing a warrant -- in the home of a man later established to be falsely accused -- removed (without logging) some intimate interspousal videotapes from the suspect's home. They showed them at card games, bachelor parties and other get-togethers for more than a year, even provided copies to people outside the department. A decent officer finally disclosed the situation after the criminal changes were dismissed. Not one person was disciplined for this conduct, although the municipality paid to settle a civil claim.

Against that background, a few games of Wii bowling seem downright tame. Inexcusable, but tame.

Would it have constituted an illegal seizure had the officers used the bathroom too?

Probably not a seizure, but it's the suspect's toilet, not yours, he's entitled to deny you the use of it, and if he's in custody while you're searching his house, you should probably assume he intends to deny you the use of it.

this is clearly unprofessional, although i can also say as somebody who done dozens of warrants, i do not find it hard to believe.
otoh, the wii could be considered dual use technology and maybe the officers were just ensuring that the software hadn't been modified to enable terrorists!

The problems with this is not what the cops were doing here, but the evident sense of entitlement -- that, because they were cops executing a warrant, they could do just what they pleased, as long as no one was likely to find out, and the guy was a "bad guy" anyway.

That sense of entitlement and arrogance in another situation might lead to some very serious misconduct, and a serious miscarriage of justice. That's the problem with this lack of professionalism. Here's, it's no biggy. Elsewhere, it could conceivably be life and death.

If I were sitting on the city council, I'd fire their asses, every one. The last thing you need is the potential liability of a cop who thinks his badge is a license.

And reasonable people (and myself) can probably differ on the degree. To me, this is around the same level of a cop helping himself to a bag of chips and a soda while executing a warrant on a convience store. Fireable?

And BTW, I'm not sure what good it would do to fire the poor folks who happened to get caught on this video. This seems like evidence of a more systemic, or cultural, problem.

In Georgia this might well fit the definition of criminal trespass, theft of electricity, and possibly burglary. The latter is defined as unlawful entry into any structure for the purpose of committing a theft. The Georgia Courts, reluctant to overturn convictions for any reason, have allowed burglary convictions to stand where persons who were otherwise lawfully inside a building walked through the open doorway of a room and lifted a purse that was in plain view, on the theory that entry into the open room was a separate, independent and unauthorized entry. The warrant authorized entry into the home for the purpose of the search, not for the purpose of stealing electricity. Once an officer enters that room with the purpose of playing the game, the entry cannot be justified by the warrant. Prosecutorial discretion will prevent them from being prosecuted, given the favored status of police, the utter ridiculousness of the conduct, the de minimus value of the theft, and perhaps an underlying problem in conceptualizing electricity (especially a small amount) as "property."

And reasonable people (and myself) can probably differ on the degree. To me, this is around the same level of a cop helping himself to a bag of chips and a soda while executing a warrant on a convience store. Fireable?

i would disagree. the chips thang is a theft. i am sure somebody here thinks that using the wii is a "theft" (theft of electricity), but in my opinion that's ridiculous.

stealing is a crime of moral turpitude and a crime of dishonesty. my agency has ZERO tolerance policy with crimes of dishonesty. and i think that's reasonable.

what these cops did was a crime of poor judgment and disrespect towards the person's stuff, but it wasn't a theft. not in any rational sense.

eliminating somebody's career for such a minor thing, especially if they have a good prior record, imo is ridiculous overkill.

this seems tailormade for a written reprimand or a short suspension (1-5 days)

And reasonable people (and myself) can probably differ on the degree. To me, this is around the same level of a cop helping himself to a bag of chips and a soda while executing a warrant on a convience store. Fireable?

i would disagree. the chips thang is a theft. i am sure somebody here thinks that using the wii is a "theft" (theft of electricity), but in my opinion that's ridiculous.

stealing is a crime of moral turpitude and a crime of dishonesty. my agency has ZERO tolerance policy with crimes of dishonesty. and i think that's reasonable.

what these cops did was a crime of poor judgment and disrespect towards the person's stuff, but it wasn't a theft. not in any rational sense.

eliminating somebody's career for such a minor thing, especially if they have a good prior record, imo is ridiculous overkill.

this seems tailormade for a written reprimand or a short suspension (1-5 days)

There have been instances where officers confiscated video game systems while executing warrants. Now, nominally, you could hide a hard drive in there (especially on a Playstation 3, which you could have reformatted to Linux), but in almost all cases, it's not actually possible for evidence to be contained on a video game system (at the least, not incriminating evidence of a crime useful to a prosecutor!)

But these seizures are rarely challenged, mostly because there's not a big overlap between "people who have their video game consoles seized in a search" and "people who can afford to retain a lawyer to defend their rights mostly on principle".

The electricity required to operate a Wii console and a big-screen television for nine hours can cost more than $100 annually. If nine hours is an average day's use, the cost approximates . . . 30 cents.

I see little difference between eating the chips and playing the game. Or plugging a charger into someone's socket. All, without permission, seem to constitute theft.

But detectives with the Polk County Sheriff's Office, the Auburndale, Lakeland and Winter Haven police departments did not know that a wireless security camera connected to a computer inside Difalco's home was recording their activity.

There's a lesson here. CSI would have intercepted the signals and used them to break the case.

Seriously, video surveillance equipment inside the house of a suspected drug dealer should be rather high on the list of things to seize.

Would it have constituted an illegal seizure had the officers used the bathroom too?

Again, maybe I watch too much TV. I'd think you might want to check the toilets out before you went to using them.

There have been instances where officers confiscated video game systems while executing warrants.

They were already confiscating flat-screen TVs. I presumed it was on their list of things they could work forfeiture on.

whit, what about the bathroom question? I personally have trouble seeing it as theft of toilet paper, but I'm curious how it works out in practice.

I wonder if the officers in this case might get a rather rough go of it because aside from the merits of what they did, they made the department look pretty crappy. I suppose that's why there are unions.

LarryA brings up a good point. Why the -heck- would they seize a television? Was the television evidence somehow? (Maybe "He had no listed job for ten years, but his house was full of top-of-the-line consumer electronics which he paid cash for"? But you could easily submit video of that, not just cart out his goods.

This reminds me of when I went through airport security (long before 9/11) and the goon at the security gate looked through all my bags. When she got to my camera, she pulled out the spare lens, removed the caps, presumably to make sure nothing was hidden inside. I don't like this very much, but so far there's no legitimate complaint.

What she did next made me want to twist her idiot head off. She started playing with my camera lens, scoping out her buddy and calling out to him and saying "oooh woooh" and making other childish noises and gestures.

I made no complaint against this idiot, but I wish I had. She was lucky I had a plane to catch. Oh, wait, that's by design.

Using your badge to play with other people's property is rude, obnoxious, disrespectful, unprofessional, and inappropriate. We entrust these people to look after our safety, or enforce laws. Using a search warrant as an excuse to play with someone's property is unpardonable. These cops should be cashiered.

whit, what about the bathroom question? I personally have trouble seeing it as theft of toilet paper, but I'm curious how it works out in practice.

i am sure SOME People here would see it as theft. i certainly don't

fwiw, i have never done "#2" at a target location during a search warrant. i have done "#1". so, i guess i stole WATER but not toilet paper.

mea culpa.

thank god i got that off my chest. the guilt is killing me.

i've spent upwards of 6 hours straight in a house during a warrant w/o a break. if you gotta go, you gotta go. on surveillances i carried an empty gallon jug in my car for just that purpose. it's not like i can break surveillance to go use a service station or even worse - get outside my car and draw attention to myself as i relieve myself in a residential neighborhood.

i guess, according to the zero tolerance theft police here, police need to bring porta potties to each warrant, so that there will be no toilet paper/water thefts!

this is a serious injustice that needs to be addressed!

i do have one kind of funny story along these lines. we were at a residence and had just arrested one of the homeowners for a felony warrant. we were chewin' da fat with the other guys, and one of them noticed that i kept looking at his guitar. he asked me if i played, and i said i did. i asked him, "mind if i try it?" he said "sure" (i am sure some here would see this as a coercive example of police power, and the question was a demand, since nobody would feel free to say no, but i digress). anyway, within a few seconds of starting, PLING! i broke a string.

oops

i pulled $7 from my pocket (a whole set of strings runs about $5 or so) and gave it to the guy.

Couldn't this be looked at like theft of services? I read an article some time ago about a man using the public library's free and unsecured wifi from their parking lot after closing and that's what he was charged with. I think it was somewhere in North Carolina maybe?

The rule should be no use of the bathroom, no glass of water, no use of the telephone, no mints from the dish . . . nothing that isn't directly related (such as illumination or using the door for entry) to conducting the search unless the owner grants permission. Guests ask before using the facilities or the telephone, and government agents intruding (lawfully and properly) do not rise to the level of guests with respect to expectations regarding permissions.

I see no difference between taking a store's can of soda (whose cost approximates a dime, and may not be paid by the store for several months consequent to allowances) for personal consumption and taking electricity (which adds 25 cents to a utility bill that will be due within a month) for personal recreation. If one constitutees theft and/or a crime of dishonesty, so does the other.

I'm amazed how many people's reactions are framed in terms of whether the behavior was "theft."

I see nothing magic about "theft." I don't see it as fundamentally more dishonest or more immoral than other bad behavior the cops might have engaged in, simply by virtue of its "theftness." If the search was unnecessarily disruptive -- not damaged, but stuff thrown around and in disarray -- I think that's less civilized behavior than eating a little food.

i've spent upwards of 6 hours straight in a house during a warrant w/o a break. if you gotta go, you gotta go.

Whit, your position is logical, reasonable, and unacceptable. Primarily because, one you start from the principal that a little unauthorized use of someone else's property is acceptable, you end up with what we see here, and worse.

A certain amount of reasonable accommodation is fine. Policeman is executing the warrant when the Taco Bell kicks in? Using the restroom doesn't constitute harm to the property owner. Likewise, turning on the Wii to make sure that it's a Wii, and not, say, a computer mounted in a Wii box, that's also reasonable. Taking a quick look through the available games as that happens, now... (Then again, didn't we just talk about the 9th's ruling on "plain view" in the context of computer searching?)

Playing the Wii game in the process of executing the warrant, uh uh. Not because it's theft; police officers are justified in causing a lot of property damage if it's necessary for the search. But because it's not necessary for the search! It's not any more justifiable than if they sat down for half an hour in your easy chair reading your book, or if two of them snuck off to the bedroom and had sex on your bed. Not their house, not their stuff. They're there to do a particular function, and in order to perform that function, given leave to do acts that would be a gross violation of the law if they weren't done by police officers with a warrant.

Whit, your position is logical, reasonable, and unacceptable. Primarily because, one you start from the principal that a little unauthorized use of someone else's property is acceptable, you end up with what we see here, and worse

only if you worship at the altar of the slippery slope. i think it's ridiculous. and fwiw, i would bet most NON-lawyers would have no problem with a cop taking a pee at a warrant location, but WOULD have a problem with the cops using the guy's Wii. this is why, generally, i prefer the common sense of the common man to the nitpicky sophistry we see here where people say "it's theft."

I see nothing magic about "theft." I don't see it as fundamentally more dishonest or more immoral than other bad behavior the cops might have engaged in, simply by virtue of its "theftness." If the search was unnecessarily disruptive -- not damaged, but stuff thrown around and in disarray -- I think that's less civilized behavior than eating a little food.

but most police officers, and most police agencies DO see the distinction. theft is a crime of dishonesty, of moral turpitude.

screwing around with a guy's wii is not seen thusly.

if an officer drank a coke from a warrant suspect's refrigerator, i would say he needs to be fired. that's theft, plain and simple. unless he was about to go into shock from low blood sugar and was a diabetic, it is plain and simple - a theft.

the cops in this case were screwing around. the intent was to play the game, the fact that it took a tiny amount of electricity and is thus TECHNICALLY a theft, is not really the point. it's unprofessional and disrespectful, but it aint or shouldn't be considered like a crime of dishonesty.

i would suggest no prosecutor in their right mind would consider charging the cop with theft for playin da wii.

the common sense response is that what the cops did was wrong, and deserves discipline. i am glad to see at least some people can see this, yet not consider it a THEFT (tm) that should be treated like a crime of dishonesty (which should result in firing)

It sounds as though the discussion is about whether or not their conduct was theft, as though the only possible misconduct in this situation is theft.

I don't think they should be sued or fired, but I do think that they should be disciplined. If nothing else, they delayed the investigation they were tasked with being a part of. In many ways, this is no different than if they were playing PC solitaire back at the office.

Presumably, they were there on the scene to do a job they were being paid to do, whether guarding the scene, collecting evidence, or whatever. They manifestly weren't doing it - leaving us to wonder what else wasn't getting done as a result.

A cop having a donut on patrol while waiting for a call to a crime scene is one thing. What possible public (and therefore, paid) service was this?

Theft isn't the issue. Unprofessionalism and screwing around on the public dime is.

Now that the plausibly sensible discussion is over, shouldn't someone point out that the officer in the video/pic is seriously out of shape?
So, they have no standards for professional conduct; don't they have any standards about being a lard bottom?

The police go into a rural home to execute a warrant. They turn on the lights and use the well water, thereby using electricity for the lights and the water pump, and using the water. Or perhaps they use kerosene to light the lamps to illuminate the search. Or the candles . . . Is it an unauthorized taking?

It sounds as though the discussion is about whether or not their conduct was theft, as though the only possible misconduct in this situation is theft.

I don't think they should be sued or fired, but I do think that they should be disciplined. If nothing else, they delayed the investigation they were tasked with being a part of. In many ways, this is no different than if they were playing PC solitaire back at the office.

your first paragraph is simply not supported by what people are saying. i don't think anybody said that what the cops did wasn't wrong. iow, there is universal (or nearly so ) agreement that what they did was wrong

there is disagreement as to whether it should be considered like a theft (which is mandatory firing - or should be - no matter how small the amount), or like garden variety misconduct - iow doing something disrespectful, and that brought disrepute on the agency, but that was not criminal

clearly, imo it's the latter

theft is a zero tolerance thang. if a cop books a prisoner and the guy has $10,001.01 on him and the cop keeps .01 for himself and books the $10,000 that should be a firing offense.

So, they have no standards for professional conduct; don't they have any standards about being a lard bottom?

i've never worked for an agency that does have such a standard. the union would throw a fit. and if they did manage to pass one, they would have ot pay us to workout ON duty, which the bean counters wouldn't want to do. we used to have a guy who was a walking double bypass waiting to happen. and guess what? it happened.

i'm a competitive athlete. i would LOVE for us to have standards and to have incentives (pay, vacation) for such a standard. but the dept is not going to make the investment and the union won't go for it either.

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